Minister for Communications, Marine and Natural Resources and OthersandKärntner Landesregierung and Others

(Requests for a preliminary ruling from the High Court (Ireland) and the Verfassungsgerichtshof)

(Electronic communications — Directive 2006/24/EC — Publicly available electronic communications services or public communications networks services — Retention of data generated or processed in connection with the provision of such services — Validity — Articles 7, 8 and 11 of the Charter of Fundamental Rights of the European Union)

Summary — Judgment of the Court (Grand Chamber), 8 April 2014

1. Fundamental rights — Charter of Fundamental Rights of the European Union — Respect for private life — Protection of personal data — Retention of data generated or processed in connection with the provision of publicly available electronic communications services or public communications networks services — Directive 2006/24 — Obligation on providers to retain certain data for the purpose of possible communication to the national authorities — Interference for the purpose of Articles 7 and 8 of the Charter

(Charter of Fundamental Rights of the European Union, Arts 7 and 8; European Parliament and Council Directive 2006/24, Arts 3, 4, 5, 6 and 8)

2. Fundamental rights — Charter of Fundamental Rights of the European Union — Limitation on the exercise of the rights and freedoms laid down by the Charter — Conditions — Retention of data generated or processed in connection with the provision of publicly available electronic communications services or public communications networks services — Directive 2006/24 — Obligation on providers to retain certain data for the purpose of possible communication to the national authorities — No impairment of the essence of the fundamental rights — Objective of protecting public security

(Charter of Fundamental Rights of the European Union, Arts 7, 8 and 52(1); European Parliament and Council Directive 2006/24)

3. Fundamental rights — Charter of Fundamental Rights of the European Union — Limitation on the exercise of the rights and freedoms laid down by the Charter — Conditions — Retention of data generated or processed in connection with the provision of publicly available electronic communications services or public communications networks services — Directive 2006/24 — Obligation on providers to retain certain data for the purpose of possible communication to the national authorities — Breach of principle of proportionality

(Charter of Fundamental Rights of the European Union, Arts 7, 8 and 52(1); European Parliament and Council Directive 2006/24)

1. The obligation imposed by Articles 3 and 6 of Directive 2006/24 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58 on providers of those services to retain, for a certain period, data relating to a person’s private life and to his communications, such as those referred to in Article 5 of the directive, constitutes in itself an interference with the rights guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union. Furthermore, Articles 4 and 8 of Directive 2006/24 laying down rules relating to the access of the competent national authorities to the data also constitute an interference with the rights guaranteed by Article 7 of the Charter.

Likewise, Directive 2006/24 constitutes an interference with the fundamental right to the protection of personal data guaranteed by Article 8 of the Charter because it provides for the processing of personal data.

That interference is wide-ranging, and must be considered to be particularly serious. Furthermore, the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the minds of the persons concerned the feeling that their private lives are the subject of constant surveillance.

(see paras 34-37)

2. Article 52(1) of the Charter of Fundamental Rights of the European Union provides that any limitation on the exercise of the rights and freedoms laid down by the Charter must be provided for by law, respect their essence and, subject to the principle of proportionality, limitations may be made to those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

First, even though the retention of data required by Directive 2006/24 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58 constitutes a particularly serious interference with the fundamental right to privacy and the other rights laid down in Article 7 of the Charter, it is not such as to adversely affect the essence of those rights given that, as follows from Article 1(2) of the directive, the directive does not permit the acquisition of knowledge of the content of the electronic communications as such. Nor is that retention of data such as to adversely affect the essence of the fundamental right to the protection of personal data enshrined in Article 8 of the Charter, because Article 7 of Directive 2006/24 lays down a rule in relation to data protection and data security.

Secondly, the material objective of Directive 2006/24 is, as follows from Article 1(1) thereof, to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. The material objective of that directive is, therefore, to contribute to the fight against serious crime and thus, ultimately, to public security. Consequently, the retention of data for the purpose of possible access to them by the competent national authorities, as required by Directive 2006/24, genuinely satisfies an objective of general interest.

(see paras 38-41, 44)

3. Directive 2006/24 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC is invalid.

The fight against serious crime, in particular against organised crime and terrorism, is indeed of the utmost importance in order to ensure public security and its effectiveness may depend to a great extent on the use of modern investigation techniques. However, such an objective of general interest, however fundamental it may be, does not, in itself, justify a data retention measure such as that established by Directive 2006/24 being considered to be necessary for the purpose of that fight.

The protection of personal data resulting from the explicit obligation laid down in Article 8(1) of the Charter of Fundamental Rights of the European Union is especially important for the right to respect for private life enshrined in Article 7 of the Charter. Consequently, the EU legislation in question must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data.

It is established that Directive 2006/24 applies to all means of electronic communication, the use of which is very widespread and of growing importance in people’s everyday lives, and covers all subscribers and registered users. It therefore entails an interference with the fundamental rights of practically the entire European population.

First, Directive 2006/24 covers, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime.

Secondly, Directive 2006/24 fails to lay down any objective criterion by which to determine the limits of the access of the competent national authorities to the data and their subsequent use for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, may be considered to be sufficiently serious to justify such an interference. Furthermore, Directive 2006/24 does not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use.

Thirdly, Directive 2006/24 requires that those data be retained for a period of at least six months, without any distinction being made between the categories of data on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned. Furthermore, it is not stated that the determination of the period of retention must be based on objective criteria in order to ensure that it is limited to what is strictly necessary.

Consequently, Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary.

Finally, Directive 2006/24 does not provide for sufficient safeguards, as required by Article 8 of the Charter, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of that data.

It follows from all those considerations that, by adopting Directive 2006/24 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter.